The District Court has recently dismissed a worker’s appeal against a finding that he was not entitled to weekly payments on the basis of total incapacity for a period after he was made redundant until he obtained new employment and thereafter for a residual partial incapacity.

Mr West was employed by BGC Australia Pty Ltd at its Koolyanobbing Mine Site. Mr West injured his lower back on 11 December 2010 when a dump truck driven by him was struck by an excavator, causing him to be thrown about in the cabin.

Mr West was off work until October 2011, when he commenced a return to work program with BGC. BGC contended that, at least by the time Mr West finished the return to work program, he had returned to his pre-injury duties. Mr West was issued a final medical certificate on 21 November 2013 which certified that he had ‘wholly recovered from the effects of the disability’ and was ‘fit’.

Conversely, Mr West contended that he never fully returned to his pre-injury duties and that, although he did return to work and was substantially fulfilling his work duties, he remained subject to restrictions which prevented him from performing associated labour tasks and from operating certain machinery which he had been called upon to operate prior to his injury.

On 23 September 2014, Mr West was made redundant. Mr West obtained alternative employment on 31 January 2015. Mr West contended that he was entitled to weekly payments for deemed total incapacity for the intervening period, contending that there was no suitable employment available to him in that period. In addition, as Mr West’s new income was less than what he previously earned with BGC, Mr West also sought payments for an ongoing partial incapacity from 31 January 2015.

The arbitrator dismissed his application, finding that Mr West failed to adduce sufficient evidence to discharge his onus of proving a compensable incapacity. The arbitrator also made a finding that the worker had ‘returned to work’ before he was made redundant.

On appeal, District Court Judge Sweeney identified an error of law in the arbitrator’s reasoning. The fact that Mr West had returned to work on the same remuneration and on the same terms and conditions was not necessarily fatal to his claim. The arbitrator had failed to focus on whether Mr West’s inability to operate an integrated tool carrier had compromised his ability to sell his labour.

However, District Court Judge Sweeney held that, apart from proving partial incapacity resulting from the injury, Mr West had to prove what he was ‘able to earn’ in some suitable employment. His argument was that there was no suitable employment during his period of unemployment and therefore he was not able to earn anything. District Court Judge Sweeney observed that the mere fact of unemployment did not determine that he was unable to earn.

It was also reiterated that a lack of demand in the market does not establish that a worker is not able to earn anything and workers have an obligation to mitigate their loss. It was noted that the evidence before the arbitrator as to what efforts had been made to secure employment was critical – and no evidence was led in this regard.

This case provides a timely reminder of the need for workers to mitigate their loss and to adduce evidence of what they are ‘able to earn’ in claims of total or partial incapacity. Further, it confirms that a lack of demand in the market does not, of itself, establish what a worker can earn.

West v BGC Australia Pty Ltd [2019] WADC 20